1st Credit/ Moon Beever Claim Form old M+S Card 'debt'

[kilnerd]

I've just recieved a claim form from MB on behalf of 1st Credit.

 

21/06/1997 The defendent entered into an arrangement for a Credit Card blah blah. 30/04/2014 the debt was assigned to 1st credit (£2500ish)

 

If I'm correct,the debt they're after isn't a Credit Card debt as stated, as the company I think they are chasing for didn't even do credit cards until 2000 and I've never had one of those.

 

Is the next step a CPR 31.14 request form?

 

Thanks

[honeybee13]

Hello and welcome to CAG.

 

Please have a read of the forum stikky and post up the answers to help the guys to advise you fully. I've assumed you're in England or Wales; if it's Scotland, you will need a different stikky.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?419198-You-have-received-a-Claim-What-you-need-to-do.-**UPDATED-December-2014**

 

My best, HB

[kilnerd]

Thanks HB,

I'll answer what I can.

Claimant: 1st Credit (Finance) Ltd

Issue Date: 23/12/2014

On 21/06/1997 the defendant entered into an agreement for a credit card with the orgiginal creditor under the Ref No. XXXXXXX. On 29/05/2012 the defendant defaulted on the agreement with an oustanding balance of 2300. On 30/04/2014 the debt was assigned to 1st Credit Finance in the sum of 2300, by the creditor Statutary notice of assignment was sent to the Defendant.

 

I've had letters so I guess I did know about Notice of Assignment.

 

If I've not answered anything it probably because I don't know

 

As I said above they appear to be chasing a credit card and if I'm correct the company never issued credit cards until 3 years later and I've never had a credit card with them

[kilnerd]

But I did have some weird loan with them at about that time

[kilnerd]

bump

[Guest]

have you done a cca request? if not, do so.

can also do the 31.14. whether they will respond to that or not though

[kilnerd]

ok - thanks.

I'll get a CCA off to 1st Credit and a 31.14 to MB tomorrow

 

Thanks

[Guest]

otherwise, if sure its not your a/c etc. just defend denying it as such.

[AndyOrch]

bump

 

Once you read and post your responses to the link provided above in post #2 you will get all the assistance you require...until then we are in the dark.

 

Regards

 

Andy

[kilnerd]

UPDATE:

sent a CPR 31.14 on 02/01/15 to MBeever.

Recieved a reply dated 06/01/15 stating they will provide the documentation requested when provided by their client.

 

Now, they've not provided documents and not asked for an extension to the 7 days what's my next step?

 

And thanks for all your help.

[AndyOrch]

They dont have to comply with a CPR request....has for you next step we cant advise as we still know very little of the claim.

[kilnerd]

in reply to ANDYORCH;

Name of the Claimant ? - 1st Credit (Finance) Limited

Date of issue – top right hand corner of the claim form – 23/12/2014

What is the claim for – credit card debt

What is the value of the claim? - 2600ish

Is the claim for a current or credit/loan account or mobile phone account? _ credit card

When did you enter into the original agreement before or after 2007? - They claim I entered in to the agreement 21/06/1997

Has the claim been issued by the original creditor

or was the account assigned and it is the Debt purchaser who has issued the claim. - Debt purchaser

 

Were you aware the account had been assigned – did you receive a Notice of Assignment? - Might have done

Did you receive a Default Notice from the original creditor? - Might have done

Have you been receiving statutory notices headed “Notice of Default sums” – at least once a year ? Don't know

Why did you cease payments? Didn't make any as far as I'm aware

What was the date of your last payment? - See above

 

Was there a dispute with the original creditor that remains unresolved? No

Did you communicate any financial problems to the original creditor

and make any attempt to enter into a debt managementicon plan? No

[kilnerd]

so no real point in CPR - why do they exist?

[AndyOrch]

If you post the particulars of claim (verbatim) then I will advise on the CPR request

 

Forget that I see you have in post#3...the reason you request it is so they will ignore it and you can use it as part of a defence.

[AndyOrch]

Have you made a CCA request...now we know he date of the agreement ?

[kilnerd]

ok thanks

Just wait on them then really, I guess I have to put a defense in before a certain date. I left that blank when I denied the claim.

[AndyOrch]

You should be submitting a defence on 24th Jan...get that CCA request off today if not already done.

[kilnerd]

OK, what do I use as the Account Reference as I probably haven't kept anything from them?

[AndyOrch]

Reference provided on the particulars of claim

[kilnerd]

*facepalm* thanks

[kilnerd]

Hi again,

I need to put my defense in.

CPR 31.14 sent to Solicitors 02/01/15 got response saying they will pass on the request to the client

CCA sent to 1st Credit 12/01/15 - No response to date.

 

Claim is for a credit card contract taken out in 1997 with M&S

I've never had a credit card or applied for one with M&S and it would have been physically impossible in 1997

• Marks & Spencers didn't accept any credit cards in-store until April 2000 (http://www.theguardian.com/money/2000/apr/17/business.personalfinancenews2)
  
• 2003 M&S piloted their own credit card in South Wales (http://www.newsroom.hsbc.co.uk/press/release/the_history_of_financial_servi )
  

 

Is there a template for putting my defence or what is the best way to word this, or just put in what I've stated above?

 

Thanks

[AndyOrch]

Kilnerd you should have started reading other threads and researching when you received this claim...from your history you have looked at 10 threads since you joined CAG...This is a self help forum...if you don't assist yourself then I'm afraid there will be little offer of assistance.

 

No such thing as a template defence...a defence as unique to your particulars of claim.

 

You can take a look in the Success Forum at other threads and the defence they have submitted...find one similar to yours...even same claimant and have a go at drafting yours.

 

Regards

 

Andy

[kilnerd]

ok - thanks - I'll stick in what I've written

[AndyOrch]

Best of luck then.

 

Andy

[kilnerd]

Sorry Andy,

never been taken to court before so new to it all, this isn't the only forum I've been looking through did a bit of searching - didn't know there was a success forum.

 

I think this looks correct - I'm not sure which dates are 5 and 9. The first (5) must be the claimant which I sent on 12/01 and 9 I'm guessing is MB CPR which I sent on 02/01?

 

Below is the defence that they've not supplied any copy of agreement etc, but I do have a bit more of a robust defence. What I'm not getting in here is the wording that the credit card debt agreement or debt cannot have existed in 1997, I'm guessing this actually should be my first line of defence, as it were!?

 

I do appreciate your time and effort!

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------

 

I deny all allegations made in the claimants Particulars of Claim and put the claimant to strict proof thereof.

The claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the courts attention to the following matters;

a)The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the written agreement referred to, the method the claimant calculated any outstanding sums due, or any default notices issued or any Notice of Assignment required for the claimant to have a legitimate right of action for the purported debt or any other matters necessary to substantiate the claimant’s claim.

b)A copy of the purported written agreement that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form.

c)A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has not been served attached to the claim form.

 

4.Consequently, I deny all allegations on the particulars of claim and do not know what case I have to meet.

 

 

5.In respect of that which is denied, on 12/01/2015 I requested that the claimant provide a true copy of the executed credit agreement, which they claim exists between parties pursuant to section 78(1) Consumer Credit Act 1974. The Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 (SI 1983/1569) sets out that the claimant must comply with such request in 12 working days of receipt of such request.

 

 

 

6.Section 78 (6) consumer Credit Act 1974 sets out the consequences of failure to comply with such request and states

 

s78 (6) If the creditor under an agreement fails to comply with subsection (1)—

 

(a) he is not entitled, while the default continues, to enforce the agreement; and

 

(b) if the default continues for one month he commits an offence.

 

 

7.It is drawn to the courts attention that the claimant has failed to comply with my request and is in clear default of its obligations under s78 (1) Consumer Credit Act 1974 and it is averred that the claimant has no right of action until such time as the default is remedied and the true copy of the executed agreement is produced before the defendant containing the prescribed terms under Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and signed in the prescribed manner by the debtor and creditor

 

8.Therefore since the documents have not been supplied as requested pursuant to the Consumer Credit Act 1974 I deny that I am liable to the claimant and put the claimant to strict proof that such enforceable agreement between parties exists

 

9.Further to the case, in an attempt to ascertain what grounds the claimant is bringing this action and to allow me to prepare my defence I requested on 02/01/2007 the disclosure of information pursuant to the Civil Procedure Rules, which is vital to this case from the claimant. The information requested amounted to copies of the Credit Agreement referred to in the particulars of claim and any default or termination notices, a transcript of all transactions, including charges, fees, interest , alleged repayments by myself and payments made by the original creditor. Also any other documents the Claimant seeks to rely on, including any default notices or termination notice, and a copy of the Notice of Assignment required to give the claimant a legitimate right of action.

 

10.To Date the claimant has ignored my request under the CPR and I have not received any such documentation requested. As a result it has proven difficult to compose this defence without disclosure of the information requested. All I have received in relation to my request is a letter from the claimant stating I am placing an unfair burden on the claimant by requesting the disclosure of the said documents.

 

11.It is denied, as suggested in point 10 that it is an unfair burden being placed upon the claimant with regards to my request for disclosure and the courts attention is drawn to the fact the claimant has failed to comply with CPR part 16 and Practice Direction 16 in-so- far as they have failed to attach the written agreement they are basing this action on to the particulars of claim as required by the civil procedure rules. Therefore I believe that I am entitled to ask the claimant to supply me the requested documents

 

12.The courts attention is drawn to the fact that the without disclosure of the requested documentation pursuant to the Civil Procedure Rules I have not yet had the opportunity to asses if the documentation the claimant claims to be relying upon to bring this action even contains the prescribed terms required in Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) which was amended by Consumer Credit (Agreements) (amendment ) Regulations 2004 (SI2004/1482). The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following--

1.Number of repayments;

2.Amount of repayments;

3.Frequency and timing of repayments;

4.Dates of repayments;

5.The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

 

 

 

13.The courts attention is also drawn to the fact that where an agreement does not have the prescribed terms as stated in point 12 it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore not enforceable by s127 (3). The courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced

 

 

 

 

14.I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) paragraph 29

" The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order."

15.Notwithstanding the above, it is also drawn to the courts attention that no default notice required by s87 (1) Consumer Credit act 1974 has been attached to the particulars of claim

 

16.It is neither admitted or denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant

 

17.Notwithstanding point 15, I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)

 

18.Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119

 

 

19.Without Disclosure of the relevant requested documentation I am unable to asses if I am indeed liable to the claimant, nor am I able to asses if the alleged agreement is properly executed, contain the required prescribed terms, or correct figures to make such an agreement enforceable by virtue of s127 Consumer Credit Act 1974

 

20.In view of the matters pleaded above, I respectfully request that the court gives consideration to whether the claimant’s statement of case should be struck out as disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16 and Practice Direction 16.

 

21.Alternatively if the court decides not to strike out the claimants case, it is requested that the court orders full disclosure of the requested documents pursuant to the Civil Procedure Rules

 

22.Having instigated these proceedings without any legal basis for doing so, having failed to provide sufficient information required under the pre-trial protocols in order to investigate this claim, or indeed to provide a reasonable time period to investigate this matter, and having failed to investigate a dispute as required by the OFT debt collection Guidelines I believe the Claimant’s conduct amounts to unlawful harassment under section 40 of The Administration of Justice Act1970. Furthermore, the Claimant’s behaviour is entirely vexatious and wholly unreasonable.

 

 

23.I respectfully ask the permission of the court to amend this defence when the claimant provides full disclosure of the requested documents